Travelers who refuse to surrender passwords, codes, encryption keys and other information enabling access to electronic devices could be fined up to $5,000 in New Zealand, according to new customs rules that went into effect Monday.
Border agents were already able to seize digital equipment, but the Customs and Excise Act of 2018 newly specifies that access to personal technology must be handed over as well. The law provides, however, that officials need to have “reasonable cause to suspect wrongdoing” before conducting a digital search — cold comfort for civil liberties advocates, who have sounded an alarm about the measure.
In addition to a fine, those who refuse to submit to a digital search could see their devices seized and subjected to a full examination, meaning “the device or data may be copied, reviewed, or evaluated (including by means of previewing, cloning, or other forensic methods.”
During parliamentary debate on the legislation, Meka Whaitiri, a member of the Labour Party and former customs minister, said the “so-called digital strip searches” allow border agents “freer access . . . to look through those items that might be causing concern.” She said the law “balances the protection of New Zealand with individual rights.”
The new customs minister, Kris Faafoi, also of Labour, earlier expressed reservations about the bill, saying the government was downplaying the authority that it would grant customs officers.
“I think most people would feel that getting access to someone’s phone or someone’s device is an encroachment on privacy,” he said.
But he hailed the legislation as it took effect, describing the changes in a statement as reflections of modern business practices and saying they arose from “consultation with the import and export sector.”
In a news release, the New Zealand Customs Service said the law would boost border compliance and support the national economy. It promised the public that it would be “unlikely to notice much difference at the border, with existing provisions reconfirmed or clarified.”
Thomas Beagle, a spokesman for the Council for Civil Liberties, told Radio New Zealand that the requirement of reasonable cause was pointless because officials didn’t have to specify the cause, meaning, “there’s no way to challenge it.”
“Nowadays we’ve got everything on our phones; we’ve got all our personal life, all our doctors’ records, our emails, absolutely everything on it, and customs can take that and keep it,” he said.
New Zealand isn’t alone in conducting so-called digital strip-searches.
Between November 2017 and March 2018, the Canadian Border Services Agency examined the digital devices of 4,529 travelers, according to the Globe and Mail. That’s a tiny portion of the 20,407,746 people processed at the border during the same period, the newspaper reported.
In the U.S., probes of mobile phones by border agents rose from fewer than 5,000 in 2015 to 25,000 in 2016, according to the Guardian. The Department of Homeland Security said the 2016 data was an anomaly.
Last year, the Knight First Amendment Institute at Columbia University filed a freedom of information suit to obtain DHS rules for conducting searches of these devices. In response, the watchdog group gained access to a log of more than 400 traveler complaints between 2011 and 2017, of which roughly 240 involved searches of electronic devices.
The American Civil Liberties Union has also entered the fray. Along with the Electronic Frontier Foundation, it brought a case last year against DHS on behalf of 11 travelers whose phones and laptops were searched at U.S. airports and the nation’s northern border. In May, a federal judge in Massachusetts ruled that case could proceed, rejecting the government’s bid to have the complaint — mounted on First Amendment and Fourth Amendment grounds — dismissed.
Landmark search and seizure cases “indicate that electronic device searches are, categorically, more intrusive than searches of one’s person or effects,” wrote U.S. District Court Judge Denise Casper, citing in particular Riley v. California, in which the Supreme Court found in 2014 that police need warrants to examine the phones of people they arrest. “The ability to review travelers’ cell phones allows officers to view ‘nearly every aspect of their lives — from the mundane to the intimate.’”
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